In her Revealed series of podcasts, former ALF law clerk Hannah Marcley, founder of Diogones Law, PLLC, and professional transparency hound, examines stories found out the hard way: through public records and Freedom of Information Act (FOIA) requests. Effective oversight is a prerequisite for all policy advocacy, but it is especially important when dealing with the secretive world of administrative agencies.
In the latest episode, Hannah discusses a case that goes to the heart of ALF’s mission of advocating for sound science in judicial and regulatory proceedings, Pavement Coatings Technology Council v. United States Geological Survey, 995 F.3d 1014 (D.C. Cir. 2021).
The Pavement Coatings Technology Council (PCTC) is a small trade association representing pavement sealant manufacturers. PCTC’s appeal challenged then- District Judge (now Justice-to-be) Ketanji Brown Jackson’s trial court decision allowing USGS to withhold, despite PCTC’s (FOIA) request, scientific data underlying its published, widely circulated and influential “research advocacy” finding that a certain pavement coating is detrimental to the environment. PCTC successfully argued to the D.C. Circuit that the modeling runs underlying the study are not exempt from disclosure under FOIA’s “deliberative process privilege,” especially since peer review and study reproducibility are key parts of a scientific study, and all scientists are expected to make the data underlying their published research available. In the podcast episode, the Executive Director of PCTC, Dr. Anne LeHuray, explains why withholding scientific data undermines not only good governance, but also good science.
ALF Executive Vice President and General Counsel Larry Ebner represented PCTC in the D.C. Circuit appeal. Along with PCTC’s trial counsel, David Kanter, Larry wrote an analysis of the D.C. Circuit opinion for Law360, explaining the opinion was a win for government transparency.
Hannah is planning to release more episodes related to ALF’s advocacy mission areas, particularly a coming interview with Peggy Little of the New Civil Liberties Alliance. Peggy talks about the Securities and Exchange Commission’s practice of black box enforcement proceedings through the combined effect of a gag rule preventing those accused of violations from discussing their case and a routine practice of refusing to disclose any records related to enforcement. ALF filed an amicus brief on behalf of six prominent Constitutional Law & First Amendment Scholars supporting Supreme Court review of a pending case challenging the gag rule, Romeril v. SEC .
